Individuals make wills to ensure the correct distribution of their assets to their loved ones after they die, but there are specific things to avoid including in a Last Will and Testament (will). For instance, certain property types transfer automatically to an individual’s beneficiaries outside of their will. Due to this, it is advisable to leave these items off the will to avoid confusion, delays, and conflict. Find out what not to include in your will below and see how the experienced estate planning attorneys at The Mindful Counsel can assist individuals with their estate planning needs by calling (480) 422-6246.

What Is a Will?

According to the American Bar Association, a will outlines how an individual wants to distribute their assets after they die. Generally, people may choose to distribute their property in any way. In an effective will, individuals can expect to find the following information:

• the grantor’s contact information
• an appointed executor and guardian if the grantor has any pets or children
• language clearly stating testamentary intent
• the property to distribute and the named beneficiaries  

Things To Avoid Including in a Will

Generally, it is advisable to avoid including anything in a will that is subject to legislation regarding the asset’s distribution after the grantor dies. Some examples of these things include:

• Property involving survivorship rights: Any property with survivorship rights passes to the co-owner automatically after the other owner dies, regardless of what the deceased individual wrote in their will. This also applies to joint tenancy properties.
• Property in living trusts: Grantors create living trusts to automatically transfer property to the trust’s beneficiaries after their death to avoid the probate process. While the grantor may change the trust’s terms during their lifetime, they cannot do this via a will.
• Annuity or life insurance proceeds: For an annuity or life insurance policy, the beneficiary automatically receives the policy’s proceeds, regardless of what the policyholder states in their will.
• Pension and retirement plan proceeds: These also pass to the named beneficiary on these documents, as opposed to any individuals named in the deceased person’s will.
• Bank accounts: Some bank accounts have a specific feature that results in the account’s funds automatically transferring to the named beneficiary after the account holder dies. As with life insurance and pension proceeds, this happens regardless of whether the deceased individual names someone else in their will to receive these funds.
• Other property: Some property may transfer automatically to another person when the owner dies. These may include bonds, stocks, vehicles, or real estate, which pass to any listed beneficiaries.

Things To Include in a Will

It is also a good idea to consider what to include, alongside what not to include, in your will. Typically, it is advisable to include anything not listed above in a will. This means anything that does not automatically transfer to a named beneficiary. To ensure the will includes everything, it is beneficial for an individual to think about all their possessions and the people they want to receive them. With this information, the individual can create an effective will by sharing these details with the compassionate and understanding attorneys at The Mindful Counsel who can help make sure the intended beneficiaries receive the correct assets.

Other Considerations

Below are some other items that an individual may want to carefully consider before including them in their will.

Gifts With Conditions Attached

Some individuals may decide to leave gifts in their wills that involve specific conditions. For instance, a person may want to gift their child some money if they improve their health, such as by quitting smoking and drinking. These conditions can involve certain challenges. In the above example, it might be necessary to appoint someone to supervise the beneficiary to see if they have fulfilled the condition. Additionally, it is necessary for the grantor to consider who may manage the funds in the meantime. Due to the complications involved, leaving out conditional gifts from a will is advisable.

Property in the Probate Process

When individuals include items in their will, it is necessary for these to go through the probate process. Often, this process is time-consuming and expensive and may leave beneficiaries with less than the asset’s value. Due to this reason, many individuals try to avoid the probate process, particularly when it concerns their most valuable assets. For instance, while an individual can leave their home to a beneficiary in their will, this may cost a lot of money. Additionally, there might be significant delays until the beneficiary receives the house’s legal title.

As a result, it can be better to use alternative tools for valuable assets to avoid the probate process, such as living trusts. A living, or revocable, trust is when the grantor can change the trust in whichever way they see fit, as opposed to an irrevocable trust.

Beneficiaries Who Struggle with Managing Money

Sometimes, an individual may want one of their beneficiaries who struggles to manage money well to have some of their money when they die. In this scenario, it is better to avoid leaving this money via a will and use a trust instead. For instance, spendthrift trusts help prevent the beneficiary from spending all the money in a short period. Additionally, a grantor may establish a special needs trust to help distribute their assets to a beneficiary with a disability, while also still allowing them to obtain state benefits.

For individuals that want to leave property or money to a child, including this in a will is advisable. To do this, it is necessary for the grantor to make arrangements for another person to manage the money or property until the beneficiary is old enough to manage it themselves.

Learn How an Estate Planning Attorney Can Help Individuals Create an Effective Will

Learning what to include and what not to include in your will is often challenging. Individuals want to ensure their wills are legally sound and error-free. To do this, contacting an estate planning attorney is advisable, as they can ensure the will contains the correct information. Moreover, an estate planning lawyer may offer helpful advice that is specific to an individual’s situation. Find out how The Mindful Counsel can help individuals create an effective will and assist with other estate planning queries by contacting them at (480) 422-6246.